Supreme Court 3: JCPC

When is the Supreme Court not the Supreme Court?  When sitting as the Judicial Committee of the Privy Council (JCPC).  This post on the JCPC wraps up the series sparked by my recent visit to the Supreme Court building in London.

Court 3 in the Supreme Court building, where the Justices hear JCPC cases. When in use, the little flags--just there to give visitors an idea of the countries which bring cases here--are removed, and a full-sized flag from the country whose case is to be discussed hangs from a full-sized flagpole.

The USA’s judicial system is a streamlined modern marvel compared to Britain’s—unsurprisingly, since the American version was planned and instituted so recently, something over 200 years ago. The British system has evolved over at least ten centuries,  accruing bits as the world modernized and the British empire grew, dropping bits as the colonies became independent, obliged to take into account all kinds of ancient rights and privileges.  The upshot is that the Crown-in-Council—that is, the monarch, aided by advisers called the Privy Council, which was the ultimate appellate court for the Empire—has been left with the final word on cases from a surprising mishmash of jurisdictions, including some in foreign countries.

Today’s Privy Council has 600 members, and all of those who are judges are technically on the Judicial Committee, the body that hears Queen-in-Council cases.  In practice it’s almost always Supreme Court Justices who sit as the JCPC in Court 3 of the building (the first two courtrooms are described here).  These come from some deliciously named lesser-known courts, the most archaic-sounding being the Court of Admiralty of the Cinque Ports, which deals only with naval law as administered along a certain stretch of the south coast.  And the JCPC hears appeals from other military courts, such as those in Sovereign Base Areas, though there are only two of those left, and they’re on Cyprus.  Then there are prize courts, for cases concerning ships or other spoils seized legally (ahem) in wartime; I don’t know when such a court last convened, much less referred a case to the Queen-in-Council, but it must have been a while ago.

The 19th century (but Tudor-inspired) front door.

A few ecclesiastical courts can still send cases: the Church Commissioners, who handle investments and real estate of the Church of England; and the Chancery Court and the Arches Court, which handle disciplinary matters among English clergy. The Chancery Court of York covers the northernmost third of the country; the Arches Court of Canterbury in reality covers the rest although theoretically it has authority over only the Archbishop of Canterbury’s London peculiar—a peculiar being an area not subject to the bishop of its local diocese.  (This particular peculiar consists of 13 parishes in London.)

I can’t imagine cases come up often; I’ve just included all of this because I thought that bit about the peculiar was so wonderfully…peculiar.  The bulk of the JCPC’s caseload comes from Crown Dependencies, British Overseas Territories, and former colonies.

Each Crown Dependency has a different legal relationship to the Crown, but in general they recognize the Queen’s authority and depend upon her for defense and such, but they are not part of the United Kingdom.  The best-known are the Isle of Man and the Bailiwicks (a bailiwick being the jurisdiction of a bailiff) of Jersey and Guernsey, two little clutches of islands off the coast of France.  It remains to be seen whether anyone will take seriously the 2008 claim by the (putative) owner of Forewick Holm that this Shetland island, which he’s renamed Forvik Island, is a Crown Dependency and therefore not subject to laws passed by Parliament.

And here's another door, an interior one, leading to... the coffee shop. This has to be the most elegant coffee shop entrance in London. I peeked in at first, unsure whether I was really allowed to open it. Odd that the only place I felt might be off-limits, and wasn't sure I was welcome, was the coffee shop; that just points up how open and welcoming the Supreme Court is about its work.

British Overseas Territories range from the British Antarctic, inhabited only by researchers, to the British Indian Ocean Area, the world’s largest marine reserve.  (It has no civilian inhabitants except fish, because the UK evicted all the civilians for military reasons, alas.)  There are twelve other British Overseas Territories, all of them small islands: Pitcairn, Montserrat, and so on.

And then there are several independent countries that find it useful to appeal cases to the JCPC rather than to fund and run their own ultimate appeals courts.  On any given day, the JCPC may hear cases from Jamaica (in the Caribbean), the Falklands (off the tip of South America), Mauritius (off Reunion Island, which is off of Madagascar, which is off of Mozambique, in case you need reminding), or Kiribati (32 South Pacific atolls plus one honest-to-goodness island, which I’m tempted to say are in the middle of nowhere except that they are really quite close to the intersection of the International Date Line and the equator, which is—in cartographical terms, anyway—probably the antithesis of nowhere).

It may no longer be valid to say that the sun never sets on the British Empire, but at one time—presumably when India and Canada participated—one quarter of the world could appeal cases to the Judicial Committee of the Privy Council.  Even drafting in senior judges from the countries involved to help, Justices still had to grapple with legal niceties of (here I can’t do better than quote from the JCPC’s website):

• Roman Dutch law from South Africa, British Guyana and Salome
• Spanish law from Trinidad
• pre-revolutionary French law from Quebec
• the Napoleonic code from Mauritius
• old Sardinian law from Malta
• Venetian law from the Ionian islands
• medieval Norman [French] law from the Channel Islands
• acts of the Oirwachtas from the Irish Free States
• Muslim, Buddhist and Hindu law from India
• Ottoman law from Turkey, Cyprus and Egypt
• Chinese law from British courts in Shanghai
• tribal law from Africa

This is the lawyer's suite, where lawyers can confer and prepare. The room seats over 30 lawyers who are in the building for cases at either the JCPC or the Supreme Court, and sometimes there are that many involved in a single case.

Though some countries listed have now withdrawn from the British system, that’s also not a complete catalog.  It leaves off Brunei, for example, even though the JCPC hears cases for the Sultan from time to time as a courtesy, reporting back to him rather than reporting, as is usual for the Privy Council, to the Queen.

Lastly, in one more improbable legacy of history, appealed cases from the Disciplinary Committee of the Royal College of Veterinary Surgeons go to the JCPC.  (There must be a good story—possibly a shaggy dog story—of how that came about.)

All of these can have their cases heard in Court 3 by right. The Committee cannot refuse such appellants; unlike the Supreme Court, the JCPC doesn’t get to chose which cases are worth tackling, and there are a lot of cases to get through.  Almost half the cases the Justices of the Supreme Court heard last year were JCPC cases from other countries.

In another strange twist, even though Britain doesn’t have the death penalty, the JCPC rules on points of law which can mean life or death for appellants from countries that do.  In one of the last cases to come from Belize, the Justices decided that a judge there had acted unlawfully in the way he applied the death penalty, and as a result a condemned man’s sentence was converted to life in prison.

There are fewer countries participating all the time; Belize withdrew from the system last year, and before that New Zealand left in 2004.  But even without them, and even without obstinate priests and obstreperous soldiers, dubious veterinarians and debatable spoils of war, it’s unlikely that the Justices will be idle.  Even though the British like to accuse the US of being excessively litigious, plenty of British people do turn up in court. I reckon there’ll be enough homegrown cases to keep the Justices in business for a few more centuries.

Supreme Court 2: The Court’s in Session

Both the US and the UK Supreme Courts opened new terms on Monday, but the openings, like the courts themselves, were rather different.

The Justices of the UK Supreme Court, gathered for the swearing-in of a new colleague, Lord Wilson, in May 2011. Used by permission (c) UK Supreme Court 2011

Actually the entire British judicial system began a new legal year on Monday, and it opened with a Church of England service in Westminster Abbey—as I’ve mentioned before, there’s no official separation of church and state here.* Afterwards the judges crossed Parliament Square for the Lord Chancellor’s Breakfast, nowadays more of a reception with a buffet.  The  custom began in the Middle Ages when the judges were required to fast before the service,  and had to parade with empty stomachs nearly 2 miles to the Abbey in the first place. Most now arrive by car, but the Justices of the Supreme Court, who only had to cross the street, walked over to the Abbey on Monday in their formal finery: black robes heavily embroidered with real gold thread, generally only worn for this opening service and at the State Opening of Parliament.

You may have seen lawyers in British courtroom dramas on TV wearing black robes and with little white wigs perched on top of their heads, with judges wearing even more elaborate get-ups.  Wearing wigs only dates back only to the 17th century, when wigs for men became the popular fashion; gowns date back at least to the Middle Ages, when they were worn by all students and most educated professional men.  There’s been a lot of discussion in the legal profession here about whether to continue these traditions, but the Supreme Court, being new and making up its own rules, decided to go wigless. Even in the procession on Monday, the Justices wore no wigs, although Lady Hale, the only female Justice, wears on these occasions a hat she had designed for the purpose.   (It is much more usual for women in the UK to wear hats for formal ceremonies than it is in the US. Women’s hats are so common at special events, especially church weddings, that one woman who asks another “Will I need a new hat?” is understood to be asking “Are you getting married?”)

The Supreme Court's front door (with friendly doorman just discernible). The carvings over the door depict Westminster Abbey receiving its Royal Charter in 1560, a suitably medieval subject for the neo-Gothic building (although it's very late neo-Gothic, completed in 1913).

Maybe Lady Hale just felt that the gravitas of the court demanded headgear. That’s apparently what the lawyers who appear before the court felt; given the choice, they decided to continue with wigs and gowns. Our tour guide (see previous post) suggested that the lawyers might feel the gowns and wigs bolster their courage, because speaking in front of the Supreme Court must be pretty intimidating, no matter what the Justices wear when they’re sitting.

These sittings take place during four terms every year: Michaelmas, Hilary, Easter, and Trinity—names used on similar calendars at some of the major historic universities, and all obviously derived from the calendar of the Christian church. Michaelmas—September 29, the feast of St Michael the Archangel—is one of 4 traditional quarter days in England, used at one time as the days rents were due or quarterly meetings held, the other quarter days being Lady Day (March 25, meaning the Feast of the Annunciation for the church, and meaning something else entirely for fans of Billie Holiday), Midsummer Day (June 24), and Christmas Day (December 25).**

The average person on the street in London probably wouldn’t be able to tell you exactly which day is Michaelmas, but they’d know that the word Michaelmas means autumn, so the guide who took us around the Supreme Court building could mention the Michaelmas term and be comfortable that people would know what she meant. Heads around me nodded; I was probably the only one who had to go home and look it up.

Another frieze from the front of the Supreme Court's building, this one showing King John and the barons at the signing of the Magna Carta, 1512. The Magna Carta is the foundation of the British constitution, which is not written, but which you might say is actually made up of history, consisting as it does of case law, conventions, and customs.

In any case, Monday’s procession in full regalia is a rare event. Most days the Justices, in ordinary business clothes (possibly plus one hat), come in, sit down, and get to work—except that they don’t all work at the same time. In the US, all 9 Supreme Court Justices are expected to hear every case, but in the UK, depending on the importance of each case and what areas of the law apply, they assign a panel of 5, 7 or 9 Justices. It’s a good thing they don’t always need all twelve Justices at once, because right now there are only ten; they’re waiting for the independent commission that selects new Justices to come up with replacements. From time to time the Court drafts in retired Justices, or judges from certain lower courts, when particular people have experience pertinent to some case, but that doesn’t have to do with filling vacancies, just with getting the best heads available to work on the problem.  That seems to me admirably practical, but I can’t imagine the US Supreme Court doing it; nobody but the 9 Senate-confirmed Justices is welcome at their deliberations.

Today’s Justices may make up the first court in the UK to be called the Supreme Court, but since supreme is just the name for the highest court that hears appeals, every judicial system has some court that qualifies. Until the 1870s, the highest court here was the House of Lords itself—the whole House, which today has 824 members (I’ve had trouble pinning down how big the House was in the 1870s). The equivalent in the US would be to have all of the Senate hear legal cases—and even if the US Senate were to do that, then the court would have only (only!) 100 judges. With so many Lords participating, it’s no surprise that the system became too cumbersome, so certain Lords were designated Lords of Appeal in Ordinary, more commonly called Law Lords.  The Law Lords met separately from the rest of the House to hear appeals as highest court.

And just for some color after those pictures of monochrome carvings, here's a close-up of the carpet with the motif featuring the rose, flax, thistle and leek of the Supreme Court's logo as designed by Peter Blake of Sgt Pepper's album cover fame.

But that system still allowed conflicts of interest that the US separation of powers prevents.   Our guide cited the controversial 2004 law banning hunting with dogs (widely considered a ban on fox hunting, although many types of hunting were affected). The Law Lords by custom do not vote on legislation, but officially there was nothing to stop them, and two of the Law Lords who felt strongly about hunting did vote. It would have been possible for them to go downstairs to the House, vote on the law, and then walk upstairs to the Law Lords’ committee room and decide cases based on that law.

Almost as much of a problem, using that committee room made it difficult for the public to see what went on.  The room couldn’t accommodate many spectators, it was difficult for the public to get to, and it couldn’t accommodate filming.  (Almost all of the proceedings of the Supreme Court are now filmed, with the footage sometimes aired by major networks or streamed on the web.)

Nowadays the public can go see what happens in all three very public courtrooms in the Supreme Court building—but so far I’ve only told you about two of them. That’s because Court 3 is not for the Supreme Court at all, but for the Justices in their other hats (or other wigs?), when they sit as the Judicial Committee of the Privy Council (JCPC).

And just like my series on the English habit of drinking tea, in which one post turned into two, and two became three, I’m finding that the tale grows in the telling. I’ll have to let you in on the activities of the JCPC in the next post.

In the meantime, here’s the poem the Poet Laureate wrote for the UK’s first Supreme Court.

Lines for The Supreme Court

Tides tumbled sand through seas long-lost to earth;
Sand hardened into-stone – stone cut, then brought
To frame the letter of our four nations’ law
And square the circle of a single court.
Here Justice sits and lifts her steady scales
Within the Abbey’s sight and Parliaments
But independent of them both. And bound
By truth of principle and argument.
A thousand years of judgment stretch behind –
The weight of rights and freedoms balancing
With fairness and with duty to the world:
The clarity time-honoured thinking brings.
New structures but an old foundation stone:
The mind of Justice still at liberty
Four nations separate but linked as one:
The light of reason falling equally.

— Andrew Motion

* Despite separation of church and state, the Catholic Church has provided a special mass to which all the US Supreme Court Justices and some guests are invited, the Sunday before the term opens in the autumn, every year since 1953. Ruth Bader Ginsburg famously does not attend, but other non-Catholic Justices often do. At the moment, the US Supreme Court is made up of 6 Catholics and 3 Jews, a tally which by no means reflects the religious habits of the country as a whole!

** Scotland traditionally had different quarter days: Candlemas (February 2), Whit Sunday (May 15), Lammas (August 1), and Martinmas (November 11). You get used to hearing “except in Scotland” about a lot of things when you talk about traditions and laws in the United Kingdom.

Supreme Court 1: The Court and its Building

A school group crosses in front of the Supreme Court Building in Parliament Square, London

One of the paradoxes of the UK is the way that some things stay the same for centuries and other things change at the drop of a hat.

Men in Abbotts Bromley in Staffordshire have danced their peculiar Horn Dance every year since 1288, the Ceremony of the Keys has closed the Tower of London every evening for over 700 years, and my friend’s local (the pub near your house where you go all the time is your local) has walked a horse through the building on Christmas Day for so long no one seems to know when the tradition began.

But governments can change fundamental public systems at lightning speed, and in 2009 lawmakers changed the shape of the judiciary by creating a Supreme Court—just like that, without the public seeming to take much notice.

The statue outside the Supreme Court building is of Abraham Lincoln, but not for any justice-related reason; the statue has been there since the 1920s, one of several statues of statesmen (and they are all men) in Parliament Square. The most recent addition to the lineup is Nelson Mandela.

Last week I  toured the Supreme Court building, and couldn’t have been more impressed.  It’s not just that you’re allowed to go in; it’s that everything about the place is designed, purposely, to get you to come see what happens inside, from the welcoming doorman who kept trying to invite me in even though I was way too early for my tour, to the…well, I’ll get to all the rest.  In fact, I’ll get to all the rest in two different posts, there’s so much.

When it was about time for my tour, I passed by the statue of Abraham  Lincoln (see photo for explanation), and a pair of stone benches inscribed with the poem written for the first Supreme Court by then-Poet Laureate Andrew Motion, and let the smiling doorman sweep me through the beautiful faux-Tudor doors.  On the other side of the security checkpoint my group, members of the Friends of the British Library, were gathering for a little good-natured grousing about what had set off the metal detectors.  (In my case it was a pocket torch, that is, a flashlight.)

The main staircase, with its copper handrail. The stained glass shows the arms of various sheriffs of the county of Middlesex, leftover from when the building was the Middlesex Guildhall.

A video came first, in which Lord Phillips, President of the Court (rather than Chief Justice, as in the US) emphasized how welcome we were and how much they all wanted us to come back when we could hear the Justices discussing cases.

When we do we must be sure, said Lord Phillips (on the screen), to pick up free leaflets at the front desk that explain what the cases are about, prepared each day so the public can understand what’s going on.  A staff member later told me it’s rare to have so many spectators that they fill the courtroom; when that happens, they set up folding chairs in the lobby for the overflow, so they don’t have to turn people away.  (Somehow, I don’t see that happening at the US Supreme Court.)

Court 1, from behind the solicitors' chairs

Courtroom 1 used to be the debating chamber of the Middlesex County council when the building was the Middlesex Guildhall, Middlesex being one of the counties that was re-organized out of existence a while back in one of those changes I find astonishing.  (Can you imagine the outcry if the US government decided, for example, to merge New York and Pennsylvania, or to divide Texas?)  The room has no witness box (US: witness stand); just as in the US, the Supreme Court considers points of law and does not hear witnesses.  The room is set up for discussion, with a curved table for Justices and a curved table for barristers (lawyers), facing each other across an oval space.  Behind the barristers sit the solicitors (a different kind of lawyer; that’s a topic for another time) and behind the Justices sit their assistants, young lawyers who would be called clerks in the US.  The public sits behind the solicitors in seats like church pews, and in an elevated gallery (US: balcony), as well.

In Courtroom 1, looking up. The portraits are those leftover from Middlesex Guildhall days, the large one here showing the Duke of Wellington.

We filed out of Court 1, walking on carpet of a pattern used throughout the building, designed by pop artist Peter Blake, famous for the cover for the Beatles Sgt Pepper album.  It shows the four emblems of the countries in the United Kingdom: the leek for Wales, the rose for England, the thistle for Scotland and the flax flower for Northern Ireland (not a shamrock because the shamrock symbolizes all of Ireland, and the British Supreme Court has no jurisdiction in the Republic).

The emblem of the UK Supreme Court dominates Court 2. The Tudor rose symbolizes England; the thistle, Scotland, the flax--the little blue one--for Ireland, and all are connected by the leaves of the leek, a symbol of Wales. The medallion of flowers is surrounded by the Greek letter omega, meaning the end, as the Supreme Court has the final say in the legal cases it decides.

Those four flowers (well, the leek is only represented by leaves) make up most of the crest of the Court, an emblem that dominates Court 2 (see photo).  Court 2 is double height, sleek and modern, with huge windows (one side looks out onto Westminster Abbey).  It’s light and airy, and said to be the Justices’ favorite court room.

The glass back wall of Court 2

The back wall is glass, as are several walls in the building, designed to emphasize the idea that the Supreme Court’s work is open to everyone.  Most of the new artwork in the building takes the form of quotations etched into glass walls; the one in the back of Court 2 reads “Justice cannot be for one side alone, but must be for both.”  Appropriately, it’s etched into the glass twice: once facing in and once facing out.  And who said it?  Eleanor Roosevelt.

The middle and upper floors of the library.

Quotations come thick and fast in the Supreme Court’s library, which isn’t ordinarily open to the public (but the magic of being with a group from the Friends of the British Library is that the doors of a lot of private libraries will open to you sooner or later).  In fact, the books have already outgrown the library, and bits of the collection are housed in nooks and crannies all over the building.  Those in the Library itself make a beautiful display, with the glass wall showing quotations from prominent people from Aristotle to Martin Luther King.  (They’re listed at the end of this post.)

Middle floor of 3-story library, looking down to the lower floor, with quotations etched in glass

And that was the tour—if you don’t count stopping for a cup of tea.  Yes, there’s a cafe in the building, and that’s open to the public, too.  It’s run by Costa—a local chain that competes with Starbucks.  If you’re in London, you can just stop in to the Supreme Court for a cappuccino, as long as you don’t mind going through security.

Costa cafe on a lower floor. Next time you're in London you can drop into the Supreme Court for coffee

The way out is through the final glass wall, which is inscribed with phrases from the oath that UK judges at all levels swear or affirm.  New judges who elect to swear can swear by Almighty God (for Christians and Jews), by Allah (for Moslems), by Gita (for Hindus) or by Guru Nanak (for Sikhs), but all of them pledge to “do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will.”

The glass walls stand for the transparency of the judiciary, that is, for a system in which—in a phrase often used by British public figures—justice is not only done, but is seen to be done.  That is one of the reasons Parliament created the Supreme Court.  But I’ll go into that, and into the use of the third court room, in the next post.

The final door: "to do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will."

Finally, here are the quotations, chosen by the original panel of 12 Justices, for the library:

• ‘Law is order and good law is good order’ – Aristotle
• ‘He who commits injustice is ever more wretched than he who suffers it’ – Plato
• ‘These having not the law are law unto themselves’ – Romans 2:14
• ‘Injustice anywhere is injustice everywhere. We are caught in an inescapable web of mutuality, tied in a single garment of destiny. Whatever affects one directly affects us all indirectly’ – Martin Luther King
• ‘The first duty of a man is the seeking after and the investigation of truth’ – Cicero
• ‘Justice is truth in action’ – Disraeli
• ‘Where is there any book of law so clear to each man as that written in his heart?’ – Tolstoy
• ‘Justice is far from being a natural concept. The closer one gets to the state of nature, the less does one find’ – Megarry
• ‘Man is a little thing while he works by and for himself but when he gives voice to the rules of love and justice he is godlike’ – Ralph Waldo Emerson
• ‘It is in justice that the ordering of society is centred’ – Aristotle
• ‘Laws were made to prevent the strong from always having their way’ – Ovid